Yesterday, President Barack Obama signed into law a $1.1 trillion appropriations act that allocates approximately $5.4 billion in emergency funding to support the U.S. Government’s response to the Ebola outbreak in West Africa.  Although this funding falls short of the Administration’s initial $6.18 billion request—approximately $1.54 billion of which was to be allocated to a contingency fund similar to appropriations made in response to pandemic influenza—all emergency funding for Ebola provided by the act is available for immediate use.  The funding is split between the Department of Health and Human Services (“HHS”), the Department of Defense (“DoD”), the Department of State, and the Agency for International Development (“AID”).  Government contractors and grant recipients can expect these agencies to use their respective shares of the funding to create a number of opportunities in the coming months.

A large portion of the approximately $2.8 billion appropriated to HHS, for example, can be used to fund research and development, preparedness, and stockpiling activities.  Within this amount, a significant portion of the approximately $1.8 billion allocated to the Centers for Disease Control (“CDC”), the $238 million allocated to National Institute of Allergy and Infectious Diseases, and the $733 million allocated to the Public Health and Social Services Emergency Fund—which has been used to support the activities of the Biomedical Advanced Research and Development Authority (“BARDA”)—may be used for research and development purposes.  As we have previously discussed, BARDA is already actively seeking to develop countermeasures for Ebola.  In addition, a significant amount of the funds provided to the CDC and the Public Health and Social Services Emergency Fund may be used to purchase countermeasures for the Strategic National Stockpile.  Portions of the funding may also be used to renovate privately owned facilities to improve preparedness and response capabilities at the state and local level, and to construct and manage facilities outside the United States in support of the CDC’s efforts to combat Ebola.

Of the $112 million appropriated to DoD, $17 million is allocated to procurement efforts and $95 million is allocated to research and development.  The Defense Threat Reduction Agency (“DTRA”) and the Defense Advanced Research Projects Agency (“DARPA”) may soon be using this funding to create additional opportunities for contractors and grant recipients to assist in the fight against Ebola.  As we have previously discussed, DTRA is already seeking near-term solutions to the Ebola outbreak.  DARPA also recently issued a solicitation targeting new entrants into government contracting that seeks proposals to develop solutions in a number of technical areas, including infectious disease.

A significant amount of the approximately $2.5 billion appropriated to the Department of State and AID is allocated to diplomatic programs and foreign assistance, including global health programs.  Although not explicitly provided for in the act, this funding may be used to support research and development contracts similar to AID’s recent efforts to support the development of solutions to obstacles faced by health care workers responding to the Ebola outbreak, as well as service contracts to support the Department of State and AID in West Africa.

The emergency funding provided by the act comes less than one week after the Secretary of HHS issued a declaration under the Public Readiness and Emergency Preparedness Act, providing individuals and companies involved in the development of three Ebola vaccine candidates with protection from liability in the performance of government contracts, grants, and other agreements.  This support, as well as the President’s recent grant of indemnification authority under Public Law 85-804 to the Administrator of AID—which authorizes AID to indemnify contractors for liability arising out of contracts performed in support of AID’s work in West Africa—confirm the U.S. Government’s commitment to encourage the participation of private industry in the U.S. Government’s response to the Ebola outbreak.

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Photo of Jennifer Plitsch Jennifer Plitsch

Jennifer Plitsch leads the firm’s Government Contracts Practice Group, where she works with clients on a broad range of issues arising from both defense and civilian contracts including contract proposal, performance, and compliance questions as well as litigation, transactional, and legislative issues.

She…

Jennifer Plitsch leads the firm’s Government Contracts Practice Group, where she works with clients on a broad range of issues arising from both defense and civilian contracts including contract proposal, performance, and compliance questions as well as litigation, transactional, and legislative issues.

She has particular expertise in advising clients on intellectual property and data rights issues under the Federal Acquisition Regulations (FAR) and obligations imposed by the Bayh-Dole Act, including march-in and substantial domestic manufacturing. Jen also has significant experience in negotiation and compliance under non-traditional government agreements including Other Transaction Authority agreements (OTAs), Cooperative Research and Development Agreements (CRADAs), Cooperative Agreements, Grants, and Small Business Innovation Research agreements.

For over 20 years, Jen’s practice has focused on advising clients in the pharmaceutical, biologics and medical device industry on all aspects of both commercial and non-commercial agreements with various government agencies including:

  • the Department of Veterans Affairs (VA);
  • the Department of Health and Human Services (HHS), including the Biomedical Advanced Research and Development Authority (BARDA), the National Institutes of Health (NIH), and the Centers for Disease Control (CDC);
  • the Department of Defense (DoD), including the Defense Threat Reduction Agency (DTRA), the Defense Advanced Research Projects Agency (DARPA), and the Joint Program Executive Office for Chemical Biological Defense (JPEO-CBRN); and
    the U.S. Agency for International Development (USAID).

She regularly advises on the development, production, and supply to the government of vaccines and other medical countermeasures addressing threats such as COVID-19, Ebola, Zika, MERS-CoV, Smallpox, seasonal and pandemic influenza, tropical diseases, botulinum toxin, nerve agents, and radiation events. In addition, for commercial drugs, biologics, and medical devices, Jen advises on Federal Supply Schedule contracts, including the complex pricing requirements imposed on products under the Veterans Health Care Act, as well as on the obligations imposed by participation in the 340B Drug Pricing program.

Jen also has significant experience in domestic sourcing compliance under the Buy American Act (BAA) and the Trade Agreements Act (TAA), including regulatory analysis and comments, certifications, investigations, and disclosures (including under the Acetris decision and Biden Administration Executive Orders). She also advises on prevailing wage requirements, including those imposed through the Davis-Bacon Act and the Service Contract Labor Standards.